A Response to Ramsey I

by Kevin Jon Heller

I appreciate Mike taking the time to respond. I’ll address his various criticisms in separate posts; here I want to focus on the amicus brief’s claim (p. 14) that Sosa requires a norm applies in ATS litigation only if it has “undisputed international acceptance,” a standard that is satisfied only if (p. 7) “the defendant’s alleged conduct [is] universally recognized as a violation of international law.”

Fortunately for ATS litigation, the “undisputed” standard is an invention of the amicus brief. The word “undisputed” does not appear in Sosa with reference to international law. Nor does the expression “universal recognition.” Instead, the Court simply refers (again and again) to “the law of nations” and to “binding customary rules” and “binding customary norms.” Indeed, the majority opinion ends with the conclusion that “[w]hatever may be said for [Sosa’s] broad principle, it expresses an aspiration exceeding any binding customary rule with the specificity this Court requires.”

If a norm had to be universally recognized in order to qualify as a “binding customary rule,” the brief’s “undisputed” standard would make sense. But it is international law 101 that a norm does not have to be universally recognized in order to be considered customary; indeed, according the the ICJ, “widespread acceptance” is all that is required. More importantly, the Supreme Court did not hold in Sosa that a norm has to be “undisputed” or “universally recognized” in order to qualify as a “binding customary rule,” as the following passage indicates:

[T]he reasonable inference from history and practice is that the ATS was intended to have practical effect the moment it became law, on the understanding that the common law would provide a cause of action for the modest number of international law violations thought to carry personal liability at the time: offenses against ambassadors, violation of safe conducts, and piracy. Sosa’s objections to this view are unpersuasive.

(b) While it is correct to assume that the First Congress understood that district courts would recognize private causes of action for certain torts in violation of the law of nations and that no development of law in the last two centuries has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law, there are good reasons for a restrained conception of the discretion a federal court should exercise in considering such a new cause of action. In deriving a standard for assessing Alvarez’s particular claim, it suffices to look to the historical antecedents, which persuade this Court that federal courts should not recognize claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the 18th-century paradigms familiar when §1350 was enacted.

The Court does not claim here that a norm has to be universally recognized in order to qualify as customary international law — and indeed, there was certainly not universal recognition in the 18th century of the idea that “offenses against ambassadors, violation of safe conducts, and piracy” carried “personal liability.” Instead, the Court is simply arguing that U.S. courts should recognize a new norm as customary international law only if its customary status today is no less clear than the customary status of norms in the 18th century such as piracy. That is what it means by ruling out the recognition of norms with “less definite… acceptance” than 18th century norms.

That is also the true meaning of the Court’s comment in Sosa that it could not “seek out and define new and debatable violations of the law of nations.” The brief seizes on the word “debatable” and transforms it into a test of “the law of nations” that requires the norm in question to be universally recognized by courts. Properly understood, however, “debatable” refers to the clarity of the idea that a norm represents customary international law; it does not refer to the requirements of customary international law itself.

That distinction is obviously critical. My argument, uncontroversial among international criminal law scholars, is that there is no doubt whatsoever that knowledge is the customary mens rea of aiding and abetting. I am certainly not claiming that each and every international and domestic court in history has adopted the knowledge standard. (For example, Hechingen Deportation, decided by a German court in the French zone applying Control Council Law No. 10, did indeed adopt the purpose test.) Under Sosa, however, the former, not the latter, is the critical question for purposes of ATS litigation.

In the next two posts, I will address Ramsey’s attempts to salvage the amicus brief’s misstatements concerning the Rome Statute and ICTY jurisprudence.

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